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Thursday, December 20, 2012

The State of Texas presented substantial circumstantial evidence that Larry Swearingen murdered Melissa Trotter. Swearingen, after all, was one of the last people to see Melissa alive, and the murder weapon (the pantyhose used as a ligature) was found at his home. There were, however, several curious aspects of the State's case that might have given a skeptical jury pause.

One cause for concern should have been the precision of the medical examiner's estimated date of death. Based on the state of decomposition and the presence of fungi, the medical examiner placed Melissa's death as having occurred 25 days prior to the autopsy. That timing conveniently corresponded to the very day Melissa disappeared. Such convenient precision would have suggested that the State's expert might have been willing to bias her findings in the State's favor, at the expense of her scientific integrity.

A second cause for concern should have been the pristine state of Melissa Trotter's stomach contents. The medical examiner testified she found a French fry-like form of potato and some chicken in Trotter's stomach. Those contents corresponded nicely with the tater-tots and the McNuggets the State presumed Trotter had eaten in the company of Swearingen. Dr. Carter testified that a person's stomach will usually not empty in less than two hours, and that any food within the stomach at death will remain there.

While food may remain in the stomach after death, it would seem unlikely that the food would remain so clearly identifiable after twenty-five days in a dead and decaying body. The stomach is more akin to a garbage disposal than it is to a Tupperware container. The stomach is a place of acids and enzymes designed to quickly disassemble food into an unrecognizable mess. Is it possible that after twenty-five days in a decaying stomach, masticated tater-tots would be easily recognizable as a French fry-like form of potato?

A skeptical juror might have wondered whether the stomach contents disputed, rather than substantiated, the medical examiner's estimated date of death. Perhaps, Melissa Trotter had been murdered only soon before her body was discovered. If so, Larry Swearingen would have been in jail when she was murdered. If so, Larry Swearingen would be factually innocent.

Adding to concerns about the date of Melissa Trotter's murder, the authorities found fresh blood under one of her fingernails. DNA testing of that blood excluded Larry Swearingen as the contributor.

Trial testimony about the blood came from Chief Medical Examiner Dr. Carter and from two employees of the Texas Department of Public Safety crime lab. Taken as a whole, their testimony was that the initial testing of fingernail scrapings revealed no human DNA. A later inspection, however, revealed some "very tiny, bright red flakes." The flakes had a total size "no bigger than ... a point of a pencil." The flakes tested positive for human blood.

Given that the flakes were blood, and given that they were still bright red, the flakes were too well preserved to have been exposed to the elements for more than a couple of days. No one disputed the conclusion that the flakes were freshly deposited, within days of their discovery.

DNA testing of the flakes produced a profile consistent with a male, but inconsistent with Larry Swearingen. The DNA profile was run through the standard database system to search for a match, and no match was found. The DNA profile was then compared against that of six individuals identified by Swearingen's defense team. Again, no match was found.

Before the jury, the State argued that the blood came not from Melissa's assailant, but from contamination unrelated to the crime. State witnesses testified that the blood could have come from a deputy present during the autopsy, a deputy who claimed he had cut himself shaving earlier that morning. Alternatively, the state witnesses suggested that the flakes could have been circulating through the morgue's air conditioning system, that they wafted through a vent, and that they landed unnoticed on the exposed fingernail scrapings.

To a skeptical juror, the evidence would have described conflicting versions of events. In the State's version, Larry Swearingen dined with Melissa Trotter, sexually assaulted her, and then killed her, all on 8 December. That story would place Melissa's death twenty-five days before the autopsy, just as the medical examiner testified.

The alternative version would have been that the pristine blood beneath Melissa's fingernails and the nearly pristine food found in her stomach were evidence of a murder that occurred not long before her body was found. This alternative version would better explain the failure of the search parties to find Melissa's body, though they searched the area three times.

Since Larry Swearingen had been jailed three weeks prior to the discovery of the body, the evidence that the murder occurred soon before the body was discovered was evidence of Swearingen's innocence. To a skeptical juror, the evidence of a recent murder might have raised reasonable doubt about the State's case. The evidence might have caused a skeptical juror to vote Not Guilty.

A Compliant Jury

To obtain a conviction for capital murder, the State bore the burden to prove beyond a reasonable doubt that Larry Swearingen not only killed Melissa Trotter, but that he did so while sexually assaulting her or while kidnapping her. If the State failed to prove beyond a reasonable doubt that Larry Swearingen sexually assaulted or kidnapped Melissa Trotter, then Swearingen would not have been eligible for the death penalty.

While the circumstantial evidence of murder was substantial, the evidence of sexual assault was wispy thin. Dr. Carter, the State's own medical expert, testified that Trotter's body showed no defensive wounds, no indication of restraints, and no scratches. Dr. Carter testified also that she found no evidence indicating penetration of the vagina, anus, or mouth. Instead, Melissa was found with her pants on and the zipper closed. The arrangement of her sweater, shirt, and bra were consistent with her body being dragged along the forest floor.

The evidence of kidnapping was even thinner than the evidence of sexual assault. The evidence of non-existent.

When the jury found Larry Swearingen guilty of capital murder, it simply relieved the State of its burden to prove sexual assault or kidnapping beyond a reasonable doubt. It removed the State of its burden to offer any proof whatsoever.